CHANDIGARH ADMINISTRATION, UNION TERRITORY, CHANDIGARH AND ORS. v
AJAY MANCHANDA ETC,
*
MARCH 26, 1996
[B.P. JEEVAN REDDY AND KS. PARIPOORNAN, JJ.]
Constitution of India, 1950 Article 311(2)—Second Proviso—Clause (b). .
Dismissal—Dispensing with enquiry—Police Officer—Allegation of exortion—Enquiry by Deputy Superintendent of Police—Report confirming allegation and stating that complainant and witnesses were threatened and terrorised by Police Officer—Panic-stricken witnesses and complainant not willing to pursue the matter—Passing dismissal order in such circumstances dispensing with enquiryp—fleld valid.
Police Officer—Extortion—Complaint by Advocate—Enquiry by Superintendent of Police—Report that Police Officer misused his official position and. extorted money—But no report of terrorising the witness or complainant—Complainant writing to Senior Superintendent of Police that in view of compromise with Police Officer he does not wish to pursue the complaint—SSP inferring from such’ writing that complainant was terrorised by Police Officer—inference held not justifi ed—Dismissal of Police Officer without enquiry held not valid—Service Law.
Judicial Review
‘Service Law—Civil servant—Dismissal without regular departmental enquiry—Judicial review—Scope and extent of.
The respondents A and K, both Sub-Inspectors of Police in the State of Punjab, were dismissed from service under clause (b) of Second Proviso to Article 311(2) i.e. without regular departmental enquiry. The charge .
against the former was that as an Investigation Officer in a case he had extorted Rs. 50,000 from an accused and had further demanded the same amount from him. The Deputy Superintendent of Police who conducted the enquiry reported that the complaintant and other witnesses were so ter-
CHANDIGARH ADMN., UNION TERRITORYy. A. MANCHANDA 919
*
- rorised by threats given by A that they had expressed their inability to _ pursue’ the matter in the Court of law or in any other enquiry against him ~ and'to make any formal statement in this regard. On the basis of this report the Senior Superintendent of Police was satisfied that in view of inability of the witnesses to come forward to depose against the delinquent officer a regular departmental enquiry was not reasonably practicable. Consequently he passed the dismissal order i in exercise of the power under Article 311(2) (b). The dismissal order was successfully challenged ‘before the Administrative Tribunal which, held that (i). the impugned order does not state. that A had given any threats ito any. ‘of the witnesses ‘or the complainant; and (id ‘merely because a police officer was the accused, it cannot be presumed that noone will come forward to depose against him.
arma
It. also commented. on the Senior Superintendent of Police observing that he "has taken, the matter in a very, casual manner: “without giving, due _ consideration and applying his dispassionate’ discretion i in the i issuance of. - - the impugned order. and coming to the conclusion, ‘to dispense with’ the regular enquiry”. , tok mea fol PA an amount of rupees:nine hundred from an. advocate on the, pretext .of a minor. traffic violation. The Superintendent: of Police (headquarters) who
‘conducted the enquiry reported that K had committed gross misuse of his official position: and extorted money. from an innocent victim, the com- plainant-Advocate, as a fine for violation of traffic regulation and misap-' ‘propriated“a major part of the amount to himself: However, he did not report that K had either terrorised the complainant or the witnesses. On - receiving the Enquiry Réeport:the Senior Superintendent of Police wrote to
-the complainant-Advocate to meet him in connection with enquiry, but the ‘latter requested for an alternative date. However, in- response to second letter of SSP the complainant-Advocate replied that since a compromise had been effected between him and K by respectable persons, he does.not ‘wish to pursue the coniplaint. From this second letter the SSP inferred and concluded that the complainant was terrorised by K and had been won vover by holding out threats. On that basis, he concluded that it was not reasonably practicable'to hold an enquiry against the respondent. Conse-
‘quently ‘he passed- an order ‘dismissing K from service resorting to ~proviso(b). to Article 311(2):'This- order was also successfully challenged before the Administrative Tribunal which held that there was no basis:
"pon which the SSP could have arrived at the conclusion that (i) the cy a vee a Dh =| PS CY ee oe va’ aeThe charge against the other respondent K was that the had. extorted ;
a
920 SUPREME COURT REPORTS [1996] 3 S.CR. complainant was won over by threats ; and (ii) it was not reasonably practicable to hold an enquiry, Against the orders passed by the Tribunal in both the cases appeals were preferred before this Court.
Disposing of the appeals, this Court
_ HELD : 1. On perusal of the original record as well as’ material placed before ‘this Court it is not possible to say that there were no reasonable grounds or relevant material before the Senior Superintendent of Police for being satisfied that in the circumstances and the situation then obtaining, it was not reasonably practicable to hold a disciplinary enquiry against’ A, No one was willing to come forward to depose.’ The requirement of recording of reasons is also satisfied in this case. Indeed, the dismissal order itself incorporates the reasons, [928-D-F]
2. It is true that in such matters the courts/Tribunals ‘are the only.
protection for the persons proceeded against and that unless strict standards are adopted for judging the "satisfaction", the government officials will: have no protection against the arbitrary acts and orders of the superior officers who may succumb to the temptation of adopting the easier course'‘of dismissing/removing/reducing in rank the lower officers without holding an enquiry instead of following the regular procedures prescribed by:the rules. At the same time, each case had to be judged on its own merits, keeping in mind the relevant provisions of Article 311(2). One has to keep in mind the situation obtaining in Punjab in the year 1993 and must appreciate the orders passed by the SSP in that context. It was natural in such a situation that the higher and responsible officers are obliged to resort to the provision contained in clause (b) of the second ‘proviso to Article 311(2) to dispense with the services of bad elements without an enquiry. [929-D-F; 923-E-H]
3. There is no reason not to believe that the power under clause (b) of second proviso to Article 311(2) was invoked by the SSP for proper reasons. The comments made against him by the Tribunal to the effect that he acted casually, is unacceptable besides being uncharitable. The Tribunal was also not justified in saying that the order of dismissal does not say that.A was responsible for intimidating and terrorising the complainant and the witnesses. [930-D-F]
4, The conclusion arrived at by the Tribunal with regard to the case
VY
CHANDIGARH ADMN,, UNION TERRITORY v. A. MANCHANDA [B.P. JEEVAN REDDY, J 921 against K needs no interference, ‘No one had ever stated either before the Superintendent of Police (Hgqrs.) or before the Senior Superintendent of Police that the complainant has been terrorised, intimidated or threatened * by K. Only because the complainant-Advocate, mentioned i in ‘his letter that he does not wish to proceed with the complaint in view of the compromise ‘ effected between the parties, it cannot be inferred that the complainant has been terrorised and intimidated. In such a situation, the inference drawn by the SSP cannot be said to be a reasonable or relevant-one. Thus there was absolutely no material upon which the SSP could be satisfied that it was not reasonably practicable to hold'a disciplinary enquiry against the respondent because, of the intimidation and threats held out by. K to. ‘the complainant. or other witnesses, [930-G G-H; SLAC] | ;
ree
Union . of - India v v. Tulsiram Patel, [198s 3 scc 398; AK. Kaitl ae Union of India; [1998] 4 scc 733 “Collector of Monghyr v: Keshav'Prasad .
Goenka, [1963] 1 SCR 98; State of Rajasthan v.‘Union‘ of India, [1977] 3 SCC 592 and S. R. Bommai v. Union of India, {1994} 3 SEC 1, referred t to.
x 4ty « cacy ee « ¥ “ t a
. CIVIL APPELLATE JURISDICT ION : ‘Civil: Appeal-N No.: 6954 of
1996 Etc. “ . re From the “Judgment and Order dated 248.95 of the Central Administrative. Tribunal at Chandigarh in O.A. No. 366 - CH of 1994.
Vian od ey
Ms. Kamini Jaiswal for the Appellants, a . ~ .
5.
; PP. Rao,: ‘R. K. Sharma and Rakes Kumar Sharma for the Se Respon, dents. " . _ a
The Judgment of the: Court delivered. by rey Fou
~ BP. JEEVAN REDDY, J. Leave: ranted. Heard. counsel for the | parties. . . . gt, tye tS
Clause (2) of Article 31 of ‘the. Constitution, of India declares that no person who holds a civil post under the Union or the State "shall be dismissed or removed or reduced in rank except after an inquiry’ in which he has been informed of the charges against him and given’ a reasonable opportunity of being heard in respect of those charges". The second proviso
‘to clause (2), however, specifies threé situations in which the requirements in clause (2) do not apply Clause ©, of the second proviso states that
"where the authority empowered to dismiss or remove a person or to reduce him in rank i is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such an inquiry’, the enquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed straightaway. Clause (3) of Article 311 is really a continuation of clause (b) of the second proviso. Clause (3) says,
"if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such an inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
In Union’ of India v. Tulsiram Patel, [1985] 3 SCC 398, it has been held by the Constitution Bench that the second proviso to Article 311 is based on public policy, is conceived in public interest and is to be employed for public good. The Constitution Bench has pointed out that the paramount thing to bear in mind is that the second proviso will apply only : where the conduct of the government servant is such-that he deserves the punishment of dismissal or removal or reduction in rank. It was further pointed out that once the above test is satisfied and the conditions specified in the relevant clause in the second proviso are satisfied, the said proviso is attracted and it would not be necessary to comply with the requirements specified in clause (2). That was a case where a large number of railway employees had participated in an illegal All-India strike and the Government had responded by ordering their dismissal en masse. The action was held to be justified in the circumstances. At the same time, it was held that recording of reasons for forming the requisite satisfaction is mandatory. Though it is not necessary that those reasons must find a place in the order of punishment, it ‘was held, the authority must produce the same when called upon to do so by the Court. The desirability of incorporating the said reasons in the order imposing punishment was emphasised. It has been held by this Court in Collector of Monghyr v. Keshav Prasad Goenka, [1963] 1 $.C.R. 98 that where the statute requires the recording of reasons, any action taken without recording the reasons is invalid. Here, of course, the requirement is contained in the constitutional provision itself.
It is true that clause (3) of Article 311 declares further that when a question arises whether it is reasonably practicable to hold an inquiry, the decision of the competent authority shall be final on that question. But that does not mean that the scope of judicial review is excluded altogether. In
NG
CHANDIGARH ADMN., UNION TERRITORY v. A. MANCHANDA (B.P. JEEVAN REDDY, J.] 923
State of Rajasthan v: 1. Union of India, (1977 3 S.C.C, 592, it was held that clause (5) of Article 356 (introduced by Constitution 38th Amendment Act and deleted by the 44th Amendment Act): which provided that "not-
- withstanding anything i in this Constitution, the satisfaction of the President mentioned in’ clause (1) stiall be final and conclusive and shall not be questioned in any court on any ground’) does not preclude the Court from entertaining the challenge to a notification under Article’ 356(1) on the ground that the requisite satisfaction was formed malafide or that in was founded On extraneous grounds, because it was ‘pointed’ out, in either of those cases, there ‘is in law no satisfaction as contemiplated by clause {1) of Article 356. It has been held by this Court in S.R. Bommai v. Union of India, [1994] 3 SCC 1 that even in the matter of exercise of | power undér Article 356,,of the Constitution, ‘the satisfaction | of the President, while undoubtedly subjective, is not. beyond the judicial scrutiny, of the courts under. Article’ 32 or Article. 226,.as ‘the case may be. The parameters of judicial review enunciated i in S.R. Bommai have been held, applicable i in A.K. Kaul v. Union of India (1995): 4 S.C. C. 73 toa matter arising under proviso (c) to Article 311(2), .A-‘reading of clauses (b) and (c) of the second proviso would establish that, if-at all, the power under. clause .(b). is. more circumscribed than the power under clause (C).- +, fos a oe: Cn e Mb” eg rt, $4 .
“Until recently, Punjab was in the throes of'a serious ‘internal disturbance. Armed groups his created a situation where the State was obliged ‘to deploy police arid other armed forces in substantial number to suppress the ‘militaricy. In the very nature of the situation, vast powers had: to be veted in the police’ to deal‘ with the emerging situations-and they did ultimately overcome the separatist forces. ‘They, had to pay a substantial price in the’ process. A large ‘nimber ‘of policetiten and members ‘of the para-military and armed forces paid: with their lives. ‘The nation ‘feels grateful for their performance and remembers the sacrifices made byt them. Unfortunately, the transition toa péacé- -time situation has not proved easy. A few among the police f force yet want to lord it over ‘the citizenry. Some of them do not hesitate to indulge i in those very acts of which the militants were accused of, viz., extortion, abduction and worse. It was natural i in such a situation that,the higher and responsible officers of the police should try to curb these excesses: In appropriate cases, they are obliged to resort to the provision contained in clause (b) of the second proviso to Article 311(2) to dispense with the services of such bad elements without an inquiry. The Chandigarh Administration, appellant in these two appeals,
~to says that acts and deeds of the two respondents herein did call for the exercise of the extraordinary power under proviso (b) to Article 311(2) which it did invoke. It says that the Central administrative Tribunal, Chandigarh was in error in interdicting its orders dismissing the respondents.
Ajay Manchanda, respondent in civil appeal (arising from Special Leave Petition (C) No. 26926 of 1995) was a Sub-Inspector of Police attached to Sector-11 Police Station. F.ILR. No. 125 was registered in the said police station on July 31, 1993 under Sections 420/468/471 of the Indian Penal Code concerning issuance/preparation of fake passports. The respondent was associated with the investigation of the said case. In the course of the investigation, certain persons including one Swaran Singh @ Makhan Singh were arrested and remanded to police custody. Sometime later, Makhan Singh filed a complaint before the higher police officers stating that the respondent took him away from his shop on the evening of December 7, 1993 and placed him in the lock up and that the respondent demanded a sum of Rupees three lakhs to release him and to delete his name from the said case. Because of the pressure exerted by the respondent and the threats held out by him, he said, he agreed to pay a sum of Rupees one lakh, out of which Rupees fifty thousand was paid through his brother), He complained that the respondent was pressing for the balance Rupees fifty thousand. On the basis of the said complaint, the Senior Superintendent of Police (S.S.P.) ordered an enquiry to the conducted by Sri S.C. Sagar, Deputy Superintendent of Police (D.S.P.) (Central) who submitted a detailed report on March 11, 1994 affirming the contents of the said complaint. He also reported that the complainant and the witnesses were terrorised by the respondent and on that account, they were not prepared to proceed with the complaint or the case further. After examining the report, the S.S.P. was satisfied that the respondent had extorted Rupees fifty thousand from the said Swaran Singh @ Makhan Singh and that he was further demanding a sum of Rupees fifty thousand and that he had also threatened and intimidated Makhan Singh and the | witnesses with dire consequences. He was satisfied that the witnesses were so terrorised that they expressed their inability to pursue the matter. On the above basis; he held that it was not reasonably practicable to hold an inquiry against the respondent and accordingly dismissed him invoking the power under Article 311(2)(b). The relevant portion of the order reads thus :
"Makhan Singh @ Swaran Singh made a complaint which was
CHANDIGARH ADMN,, UNION TERRITORY v. A, MANCHANDA (B.P. JEEVAN REDDY, J.] 925 marked to Sh. S.C. Sagar DSP/Central, who submitted detailed report dated 11.3.94 whereby he found truth in the allegations of
+ +Makhan Singh @ Swaran Singh against S.I: Ajay Manchanda. S11. Ajay Manchanda has extorted Rs. 50,000 and was further demand-
* — ing’Rs. 50,000 more from the accused. He threatened the accused to such an extent that the accused and the witnesses refused to make any statement before DSP. S.C.. Sagar.
ray
Shri S. C. Sagar, DSP has. “reported that the. witnesses are so terrorised by the threats of, SI. Ajay Manchanda ‘that ‘they have
_ _expressed their inability to pursue the matter in the court of law _ _ or in any other enquiry against him and more so > they tefused to . ‘ _ make any statement before him.
. “f, L “gt complaint of Makhan Singh @ Swaran Singh and my oral examination'of Makhan Singh @ Swaran Singh, it has been proved to my subjective’ satisfaction that S.I. “Ajay Manchanda has ‘extorted Rs.
_ (50 ,000 from accused Makhan Singh @. Swaran Singh ‘and he was .
*“firther demanding Rs. ‘50, 000 more and he threatened’ him with " dire conseqiiences ‘and the witnesses are so terrorised that they expressed their inability to pursue the matter.
soe oat.
Pa 5
_#
-_ e .
* The Judicial prosécution is ‘not ordered in the case. The regular departmental enquiry is also not reasonably practicable in view of threats and ‘witnesses inability to come forward to depose against -_ the delinquent official due to threats of elimination: Therefore, I - dispense with regular, ‘departmental enquiry in’ exercise’ of power “vested i in me under, Atticle 311) (By) of the, Constitution of India"
_ The respondent challenged the order of dismissal before the Central Administrative Tribunal, Chandigarh. The Tribunal found that the impugned. -order does not ‘state ‘that the respondent had given any threats to any of the witnesses. or the” coinplainant ° and that in fact there is no reference to the act of terrorising by the respondent. The Tribunal opined that merely because a police officer ig the accused, it catinot be presumed that no one will come forward to depose against him: It observed that the Senior Superintendent of Police "has taken the matter ina very casual manner ‘without giving due consideration _and applying his dispassionate discretion in the issuance of the impugned order and coming to the
Whereas after going 1g through the report of DSP S.C. Sagar, the on
926 ; SUPREME COURT REPORTS [1996] 3 S.C.R. conclusion to dispense with the regular enquiry."
Kuldip Singh, respondent in civil appeal (arising from Special Leave Petition (C) 26970 of 1995) was also a Sub-Inspector of Police under the Chandigarh Administration. One Sri K.B. Raheja, Advocate, Ferozepur complained to the S.S.P., Chandigarh that the respondent extorted an amount of Rupees nine hundred from him on the pretext of a minor traffic violation while he was driving his car on the wrong side near cricket stadium on March 9, 1993, An enquiry was ordered into the said complaint to be conducted by Sri Arvind Deep, SP (Headquarters). The said officer reported that the respondent has "committed gross misuse of his official position and extorted money from an innocent victim Sri Kulbhushan Raheja as a fine for violation of traffic regulation but he misappropriated a major part of the amount to himself and misbehaved with him and also impounded the car". He reported that while the respondent collected Rupees nine hundred from Sri Raheja, he issued a receipt to him only for Rupees four hundred and remitted only a sum of Rupees one hundred into the Government account. He reported that while in the receipt issued to the said advocate, the amount collected from him was mentioned as rupees four hundred both in words and figures, the counterfoil of the said receipt contained only a figure of Rupees one hundred in figures. It is significant to notice that the S.P. (Headquarters) did not report that the respondent had either terrorised the complainant or the witnesses, if any. On this report, the $.S.P. made the following endorsement on 29th March, 1993 :
"Enough and sufficient indications that witness is being pressurised and compelled to withdraw his statement. In fact his reluctance to appear before me is clear vide his letter dated 25.3.93. His mention of a compromise in his letter dated 28.3.93 are clear indications of no chance of free deposition by the witness in the enquiry.
The obvious fact is that witness has been won over under the threat of injury to his person and property and threat may be to the extent of elimination of the witness, the delinquent official being in uniform. The fact finding enquiry conducted by SP/HQ found truth in the allegation in the complaint regarding misap- propriation of money.
The judicial prosecution is not ordered in the case. The regular departmental enquiry is also not reasonably practicable in view of
-. Of being ‘liminated’ by the respondent.
CHANDIGARH ADMN,, UNION TERRITORY ». A. MANCHANDA [BP.JEEVANREDDY,J] 927 the letter of the complainant, Therefore, I dispense with regular departmental enquiry in exercise of power vested in me under _ Article 311(2)(B)."
+ .% : : . 5
On the same day, ie., 29th March, 1993, the S.S.P. passed an order dismissing the respondent from service ‘resorting to proviso (b) to Article 3112). Before proceeding further, it is necessary to notice a few facts for a | Proper appreciation of the aforesaid endorsement made by the S.S.P. on 29th Marchi, 1993. It appears that after receiving the enquiry report of the SP. (Headquarters) on 22nd March, 1993, the 'S.S.P. sent a messagé to Sri
“Rahéja, Advocate to come and meet him in connection with his complaint. On, 25th March, 1993, Sri Raheja wrote to the'S.S.P. that on ‘account of his engagements in the sessions courts, he would not be able to meet the S.S.P. in his office on 26th March, 1993 and that he may be called on some other day, preferably a Saturday or Sunday. It appears that he was called again in response to which Sri Raheja addressed another letter (dated 28th “March, 1993) that since a compromise has been effected between him and the réspondent by respectable persons, he does not wish to pursue. the complaint, against the’ respondent. It is from, this second letter that the ' §.S:P. seems to have inferred and concluded that’ the “advocate was being terrorised by the’ respondent and has been won over by holding out threats.-
Ont that basis, he: concluded. that it was not reasonably practicable to hold ani | enquiry against the respondent. ,
' ¥
"When the matter, went t befere the. Central Adininisttative Tribunal,
Chandigarh, it: -allowéd, the’ original application’ filed by the respondent holding that there ‘was no material before the S.S.P. on the basis of which he could have been reasoriably satisfied that it was not reasonably prac- oe ticablé to hold-a ‘disciplinary enquiry against the respondent. The Tribunal an noted that’ the complainant is not an ordinary person but an advocate practising in ‘the sessions courts and that there .wasno basis upon which the SS.P. could have artived at thé conclusion that the said advocate ‘was won over by’ threats’ or that hé’ was being terrorised ¢ or that, he was afraid
”
Atos, + “ a s: Kamini "Vaiswal, learned counsel for the, appellant, ‘assailed the reasoning and conclusion of the Tribunal i in both the matters whereas S/Sri PP. Rao and DV. ’- Sehgal, appearing for the respondents respectively,
.
supported the reasoning and conclusion of the Tribunal.
We shall first take up the case against Ajay Manchanda. It was December, 1993. The complainant Swaran Singh @ Makhan Singh was one of the persons named as accused in the F.I.R. He was arrested. Admittedly, the respondent was one of the officers investigating the said case. Swaran Singh complained to the S.S.P. of extortion and the continuing harassment by the respondent. The S.S.P. ordered an enquiry through D.S.P. who reported that the complaint is true. The D.S.P. reported expressly that the complainant and other witnesses "are so terrorised by the threats given by SI Ajai Manchanda that they have expressed their inability to pursue the matter in the court of law or in any other enquiry against him. They are so terrorised that they have even explained their inability to make any formal statement before me. Keeping in view the above circumstances when complainant and other witnesses are so terrorised and panic-striken that they are not willing to come forward the departmental enquiry shall also ‘not serve any purpose.” On the basis of the said report, the S.S.P. was satisfied that it was "not reasonably practicable in view of threats and witnesses’ inability to come forward to depose against the delinquent officer due to threats of elimination" and accordingly passed the order of dismissal. On the basis ‘of the material placed before us - we have also perused the original 1 record which was placed before us by Ms. Kamini Jaiswal pursuant to our direction - it is not possible for us to say that there were no reasonable grounds or relevant material before the S.S.P. for being satisfied that in the circumstances and the situation then obtaining, it was not reasonably practicable to hold a disciplinary enquiry against the respondent. No one would come forward to depose. The requirement of recording of reasons is also satisfied in this case. Indeed, the dismissed order itself incorporates the reasons. We have also looked into the report of the D.S.P. and the relevant record.
Sri P.P. Rao, learned counsel for the respondent, submitted that there was no relevant material on the basis of which the $.S.P. could form the requisite satisfaction. He submitted that only a minor penalty has been imposed upon the Station House Officer. Inspector Jagbir Singh who too is alleged to have extorted a sum of Rupees fifteen thousand from the said complainant as against his demand for Rupees thirty thousand. The learned counse! complained that the respondent is being made the
_ CHANDIGARH ADMN,, UNION TERRITORY ». A. MANCHANDA [B.P. JEEVAN REDDY,J.) 929 scapegoat for the wrong done by his superiors and that the action taken against him is not bonafide.Counsel further submitted that the D.S.P. who conducted the’ preliminary enquiry and submitted the report was himself involved in the alleged extortion. This the learned counsel says, is established from the statement of Sri Swaran ‘Singh @ Makhan Singh wherein
"he had stated ‘after some days’ Deputy Superintendent of Police Subhash
Sagar. himself called us and told Ajay Manchanda and Jagbir Singh that my remand will have to be extended by two more days. On that, Ajay Manchanda and Jagbir ‘Singh in a satirical note said that "Makhan to inakhan laga chuke hai" (in other words, money has already been taken from him)." From this statement, Sri P.P. Rao seeks to infer that D.S.P. Subhash Sagar (who had conducted the enquiry against the respondent and submitted the enquiry report) was in the know of and was a party to the entire episode and, therefore, could not have been appointed as the enquiry ‘officer against the respondent. He was in ‘the nature of a witness, it is contended. Learned counsel further submitted that if the complainant was so terrorised, he would not have gone to the S.S.P. complaining ‘of harassment in writing nor would he have deposed before the D.S.P. (enquiry officer). The said facts, learned counsel submitted, negatived the plea of terrorising or intimidation. The learned counsel finally submitted that in ‘such matters the courts/tribunals are the- only protection for the persons proceeded against : and that unless strict standards are adopted for judging the "satisfaction’, the government officials will have no protection against the arbitrary acts and orders of the superior officers who may succumb to the temptation, of adopting the easier course of dismissing/removing/reducing in rank the'lower officers without holding an enquiry instead of following the regular procedures prescribed byt the rules. 4
We agree. with. and share the concern. 1 of the learned counsel contained i in his last submission. At the same time, we have to judge each case . on its own merits, keeping in mind the relevant provisions of Article 311(2) . . and the interpretation placed upon it by this Court in Tulsiram Patel. We must say immediately that the learned counsel is not right in inferring from the statement of the, c6mplainant extracted hereinabove that the D.S.P. (enquiry officer) was also.a party to the extortion. The statement extracted hereinabove does not establish that the said words were addressed to or were meant for the benefit of the. D.S.P. Moreover, the words "Makhan_ ko makhan laga chuke hai" do not mean what the complainant thought they meant. So far as the allegation against Jagbir. Singh iS + concerned, it is .
a ?
equally unacceptable. Ms. Kamini Jaiswal has produced the file relating to the proceedings taken against Jagbir Singh which we have perused. The charge against Jagbir Singh was not one of extortion from the complainant or anyone else, but one of laxity and negligence in carrying out the investigation. May be that the complainant had made an allegation against Jagbir Singh but there is no reference to it in the D.S.P. (enquiry officer’s) report and we do not know the circumstances in which Jagbir Singh was not proceeded against for extortion. This plea was not raised by the respondent before the Tribunal. It has been raised for the first time before us. Since the allegation is factual in nature, we are not inclined to entertain the same at this stage. In any event, as stated above, we have perused the file concerning Jagbir Singh also, and are satisfied that the charge against Jagbir Singh was altogether different. We are, therefore, unable. to agree with Sri P.P. Rao that there was no material upon which the S.S.P. could be satisfied that it is not reasonably practicable to hold a disciplinary enquiry against the respondent. One has to keep in mind the situation obtaining in Punjab in the year 1993 and must appreciate the orders passed by the S.S.P. in that context. We see no reason not to believe that the aforesaid power under clause (b) was invoked by the S.S.P. for proper reasons. The comments made against him by the Tribunal to the effect that he acted casually j is unacceptable besides being uncharitable. The Tribunal was also not justified i in saying that the order of dismissal does not say that the respondent was responsible for intimidating and terrorising the com- plainant and the witnesses. It was an hyper-technical objection. The order — read as a whole and the accompanying report of the D.S.P. and the endorsement of S.S.P. on the report do clearly establish that it was respondent who was intimidating and 1 ‘terrorising the said persons. The judgment and order of the. Tribunal in O.A. 366-Ch/94 is accordingly set aside and the appeal arising fi from Special. Leave Petition (C) 26926 of 1995 is allowed.
No costs.
Now, coming to the case against kuldip Singh, we are of the opinion that the conclusion. arrived at by the Tribunal in this matter needs no interférence at our hands. We have pointed out hereinabove while discussing the facts of this case that no one had ever stated either before the S.P. (Headquarters) (preliminary enquiry officer) or before the S.S.P. that he has been terrorised, intimated or threatened by the respondent. Only because the complainant Sri Raheja, Advocate, mentioned in his letter that
CHANDIGARH ADMN,, UNION TERRITORY v. A. MANCHANDA [BP. JEEVANREDDY.J} 931 he does not wish to proceed with the complaint in view of the compromise effected between him and the respondent by certain respectable elders, the S.S.P. inferred that the’'said complainant has been terrorised and intimidated. We are not satisfied that that is only inference that flows from the complainant’s second letter. The’ '$.S.P; also does not say either in the order of dismissal - oF. anywhere i in the record - that he had information to the above effect” from some . other . source. In such a’ situation, the inference drawn by the SSP. cannot be said to be a reasonable or relevant one. In short, there was absolutely no material upon which the $.S.P. could be satisfied that it was not reasonably practicable to hold.a disciplinary enquiry against the respondent because of the intimidation and threats held out by the respondent to the complainant or other witnesses, if any. Accordingly,the appeal arising from Special leave Petition. nC) 26970 of 1995 is dismissed... - Doo, . "
“y : tot woe fe rs) * No costs. as
TNA. Ss 7 fF " Appeal disposed of,